Ex Parte Kreizinger

Patent Trial and Appeal Board

Nov 6, 2017

15337138 (P.T.A.B. Nov. 6, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/337,138 10/28/2016 Kenneth Robert Kreizinger 5514
109839 7590
Kenneth R. Kreizinger
2724 NE 35th Street
Fort Lauderdale, EL 33306
11/06/2017 EXAMINER
KATCHEVES, BASIL S
ART UNIT PAPER NUMBER
3638
MAIL DATE DELIVERY MODE
11/06/2017 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KENNETH ROBERT KREIZINGER1
Appeal 2017-008645
Application 15/337,138
Technology Center 3600
Before STEFAN STAICOVICI, JAMES P. CALVE, and
FREDERICK C. LANEY, Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Final Office
Action rejecting claims 1—8, 10, and 12—20.2 Appeal Br. 2. Claims 9 and 11
are cancelled. Id. at 31 (Claims Appendix). Claim 21 is withdrawn. Final
Act. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant is identified as the real party in interest. Appeal Br. 2.
2 Appellant’s Petition to Make Special Based on Age for Advancement of
Examination Under 37 C.F.R. § 1.102(c)(1) was granted on October 28,
2016. Decision on Petition to Make Special Under 37 C.F.R. § 1.102(c)(1).
Appeal 2017-008645
Application 15/337,138
CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below.
1. A stiffened frame supported panel comprised of:
a. two or more frame members having a top edge, a bottom
edge and two sides and said frame members are spaced a
distance apart with one or more individual spans between
said frame members and
b. a continuous panel comprised of a polyurethane foam
composite panel having a cover and continuous over said
top edges and said continuous panel is supported by said
frame members and has a continuous conditioned load
capacity over each said individual span as determined by
a load test measuring deflection and
c. said continuous panel has one or more dropped sections
between said sides and
d. said continuous panel fixed to said frame members with a
sufficient adhesive bond to induce a fixed boundary
condition on said continuous panel and
e. one or more rotational resistance members attached to
said sides or bottom edge of two or more adjacent said
frame members and
f. said continuous panel is stiffened by said dropped
section, said fixed boundary condition and said rotational
resistance members for an increased load capacity, as
determined by said load test, at least 25% greater than
said continuous conditioned load capacity over at least
one said individual span,
whereby said panel is stiffened.
REJECTIONS3
Claims 1—4, 13, and 15 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
3 Appellant also challenges the Examiner’s decision to withdraw claim 21.
Final Act. 2; Appeal Br. 2. This challenge is not an appealable matter. It is
properly raised in a petition to the Director. See 37 C.F.R. § 1.181(a)(1); In
2
Appeal 2017-008645
Application 15/337,138
Claims 1—8, 12, 13, 15, 17, and 19 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Duncan (US 2008/0313985 Al, pub. Dec. 25,
2008), Collie (US 6,931,813 B2, iss. Aug. 23, 2005), and Porter (US 2003/
0033774 Al, pub. Feb. 20, 2003).
Claims 10, 14, 18, and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Duncan, Collie, Porter, and Smith (US 8,696,966 B2, iss.
Apr. 15,2014).
Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Duncan, Collie, Porter, and Mandish (US 5,417,023, iss. May 23, 1995).
ANALYSIS
Claims 1—4, 13, and 15 as being indefinite
Claim 1
The Examiner determines claim 1 is confusing because the limitation
“a continuous panel comprised of a polyurethane foam composite panel
having a cover” recites a panel comprised of another panel. Final Act. 3;
Ans. 12. Appellant argues that “continuous panel” is defined as: “[a] panel
that is continuous over and supported by spaced apart frame members that
create two or more spans, is a continuous panel in a continuous condition.”
Appeal Br. 25 (quoting Spec. 131). Appellant also argues that “composite
panel” is defined as “a panel comprised of two or more materials adhesively
bonded together.” Id. (quoting Spec. 1146). Appellant argues that a skilled
artisan would understand from these definitions that a continuous panel also
can be a composite panel made of polyurethane foam. Id. at 26. We agree.
re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (examiners’ decisions that are
discretionary, procedural, or non-substantive are not appealable, but instead
are resolved by petition to the Director).
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Appeal 2017-008645
Application 15/337,138
A skilled artisan would understand the claimed “continuous panel” to
be a single element that spans two or more frame members to create two or
more spans in light of the definition in the Specification. A skilled artisan
would further understand that the recitation of a continuous panel does not
indicate the material(s) of which the continuous panel is made, however. As
such, the skilled artisan would understand that the “continuous panel” may
comprise a “polyurethane foam composite panel” as opposed to another
material or other polyurethane foam that is not a composite panel. See Spec.
1146. The “continuous” nature of the panel describes its configuration.
The polyurethane foam composite nature of the panel describes its
composition. Thus, we do not sustain the indefiniteness rejection of claim 1.
Claims 2-A
Claims 2—\ recite that the “increased load capacity” of the continuous
panel of claim 1 is “predetermined from prior load tests to be more than 25%
greater” (claim 2), 50% greater (claim 3), and 200% greater (claim 4) than a
continuous conditioned load capacity. The Examiner determines that the use
of “predetermined” in claims 2-4 is confusing because it is not clear how the
results are predetermined before the structure is built. Final Act. 3; Ans. 13.
Appellant argues persuasively that the Specification describes how the
increased load capacity is predetermined from prior load tests that determine
the amounts of increased load capacity expected with different variables and
knowledge that a certain combination achieves a minimum increased of load
capacity means that the amount was predetermined. Appeal Br. 26 (quoting
Spec. 1207). In other words, the increased load capacities in claims 2—\ are
based on prior tests that Appellant conducted of the configuration of claim 1.
Thus, we also do not sustain the indefiniteness rejection of claims 2-4.
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Appeal 2017-008645
Application 15/337,138
Claim 13
Claim 13 depends from claim 1 and recites that the frame members of
claim 1 are a jobsite assembled frame. The Examiner determines that claim
13 refers to a job site but does not identify where or what type of job site this
is such as a factory, assembly point, construction site, and the like. Ans. 13;
Final Act. 3. Appellant argues persuasively that the Specification describes
this feature as the ability to create the claimed stiffened panel by installing
various parts of the panel during the construction of a structure including the
assembly of frame members into a frame in place at a job site. Appeal Br.
26—27 (quoting Spec. 1170). In other words, instead of a panel being pre­
assembled at a factory, the panel can be assembled when the frame members
of a structure are assembled at a location where a stmcture is built, i.e., at a
job site. Thus, we do not sustain the indefiniteness rejection of claim 13.
Claim 15
Claim 1 recites a continuous panel fixed to the frame members with a
sufficient adhesive bond to induce a fixed boundary condition on the panel.
Claim 15 depends from claim 1 and recites that the “foam composite panel is
adhesively bonded to said top edges’ interface [of said frame members] with
a sufficient adhesive bond to induce a fixed boundary condition on said
continuous panel.” The Examiner determines it is unclear what is meant by
a “sufficient adhesive bond” because the degree of what is sufficient is not
known. Final Act. 3; Ans. 13.
Appellant argues that the Specification describes what is meant by a
sufficient adhesive bond. Appeal Br. 28 (quoting Spec. ^fl[ 115—16).
Appellant also argues that a “fixed boundary condition” is defined as
increasing load capacity by some amount up to 400%. Reply Br. 12.
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Appeal 2017-008645
Application 15/337,138
A skilled artisan would understand what is meant by “sufficiently
bonded” when claim 15 is interpreted in light of the Specification, which
defines a “fixed boundary condition” as “sufficiently fixing a panel to frame
members to induce some increase in load capacity up to 400%.” Spec. 138.
Appellant defines a “fixed boundary condition” as one in which a panel is
“fixed” to the frame members. Id. 1116. Appellant also defines “fixed” as
“a sufficiently high bond or bonding strength between the panel and frame
members that induces a fixed boundary condition on the panel.” Id. Thus, a
skilled artisan would understand the term “sufficient adhesive bond” to be a
bond that fixes a panel to frame members so as to increase the load capacity
of the panel from 1% up to 400% as described in the Specification. Id. 138.
Thus, we do not sustain the rejection of claim 15.
Claims 1—8, 12, 13, 15, 17, and 19
Rejected Over Duncan, Collie, and Porter
The Examiner finds that Duncan discloses a stiffened frame supported
panel, as recited in claim 1, with increased load capacity, but Duncan lacks a
rotational resistance member on the sides of the frame members and a cover
over the panel. Final Act. 4—5. The Examiner finds that Collie teaches a
framework with rotational resistance members (top plate board 75) on the
sides of the frame members and reasons that it would have been obvious for
a skilled artisan to include such members on Duncan’s panel to strengthen
the structure further, as Collie teaches. Id. at 5.
The Examiner also finds that Porter teaches a foam panel (plastic
foam core 56) with plastic covers 52, 60 and reasons it would have been
obvious to a person of ordinary skill in the art to add such covers to Duncan
to increase moisture resistance, as Porter teaches. Id.
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Appeal 2017-008645
Application 15/337,138
Appellant argues that claim 1 requires a load test measuring deflection
and Duncan’s test is an uplift resistance test that measures the pressure that
is necessary to separate a panel from its attachment to five frame members.
Appeal Br. 4—5. Appellant argues that the Specification defines “load test”
as measuring deflection and explicitly disavows Duncan’s uplift resistance
test because it does not measure the claimed deflection. Id. at 5. Appellant
also argues that the claimed load capacity must be determined over a single,
individual span, but Duncan’s uplift resistance load capacity test applies a
load over four spans of a panel. Id. at 6—7. Appellant further argues that the
use of an uplift resistance test in Duncan teaches away from the claimed load
deflection test because the uplift resistance test uniformly distributes a wind
load whereas the claimed load deflection test measures increased loads by
deflection and also evidences hindsight. Id. at 8—10. We agree.
Resolution of this dispute between Appellant and Examiner turns on
our interpretation of “load test.” We interpret the term “load test” to mean
“measuring a panel’s deflection that results from a load placed on a panel
section.” This meaning is consistent with the Specification, which describes
that a load test “comprises the measurement of a panel’s deflection resulting
from a load placed on the panel section that is over an individual span.”
Spec. 134. It also is consistent with the language of claim 1, which recites
“a load test measuring deflection.”
The Examiner’s interpretation of Duncan’s wind resistance test as a
load test is an overly broad interpretation of load test and is inconsistent with
the Specification, which specifically discloses that “[a]n uplift resistance test
is not a load test as defined herein since it does not measure panel deflection
over individual spans.” Id.
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Appeal 2017-008645
Application 15/337,138
Instead of measuring deflection, i.e., amount of movement, of a panel
that is subjected to a load, Duncan’s wind resistance test measures “ultimate
failure” of a panel subjected to a vacuum pressure load. Duncan | 64—66.
Failure occurs when the oriented strand board sheet (a panel) separates from
the dimensional lumber (frame members), producing visual and audible
indications such as nails pulling through sheathing. Id. The test does not
measure the deflection of the OSB sheet, however. The Examiner is correct
that claim 1 does not require any particular type of load testing. Ans. 8.
However, claim 1 does recite that the load test measures deflection, and a
wind resistance test does not measure deflection, as claimed. Instead, it
measures total failure by complete separation of a panel and frame, that is, it
measures delamination. Duncan | 65. Thus, as Collie and Porter do not
remedy the deficiencies of Duncan discussed supra, we do not sustain the
obviousness rejection of claims 1—8, 12, 13, 15, 17, and 19.
Claims 10, 14, 16, 18, and 20
Rejected Duncan, Collie, Porter, and Smith/Mandish
The Examiner relies on Smith and Mandish to teach features recited in
dependent claims 10, 14, 16, 18, and 20, and not to teach features of claim 1.
Final Act. 7—8. Thus, Smith and Mandish do not overcome the deficiencies
of Duncan, Collie, and Porter as to claim 1 from which claims 10, 14, 16, 18,
and 20 depend. See Appeal Br. 22—23, 24. Thus, we do not sustain the
obviousness rejections of claims 10, 14, 16, 18, and 20.
DECISION
We reverse the rejections of claims 1—8, 10, and 12—20.
REVERSED
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